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Hemchand Mahabir Prasad Singhania Vs. Subhkaran Nandlal Baragra - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 1247 of 1965
Judge
Reported inAIR1967Bom361; (1966)68BOMLR857; 1967MhLJ59
ActsCode of Civil Procedure (CPC), 1908 - Sections 151 - Order 5, Rule 20 - Order 9, Rule 13; Bombay Rents Hotel and Lodging House Rates (Control) Act, 1947 - Sections 29 and 28
AppellantHemchand Mahabir Prasad Singhania
RespondentSubhkaran Nandlal Baragra
Appellant AdvocateH.C. Turana, Adv.
Respondent AdvocateD.R. Dhanuka, Adv.
Excerpt:
a) the case focused on the method of effecting substituted service - it was observed that though rule 20 of the civil procedure code, 1908 prescribed a normal method of effecting substituted service, but the court was not under obligation to prescribe in normal method - it can order in the way that it supposed to be fit - therefore, the order to paste the copy of summon on the premises of defendant and to send an another copy of it by registered post was not illegal and was in accordance with order 5 rule 20;b) it was ruled that the appellate court had no power to consider whether the order of the trial court regarding substituted service, was made on sufficient ground, as the order complied with the provision of order 5 and rule 20 of the civil procedure code, 1908;c) the case debated on.....order(1) on the 14th august 1964 the petitioner-landlord filed an ejectment suit against the respondent-tenant in the court of small causes at bombay on the ground that the respondent was a defaulter in the payment of rent for more than six months. the summons of the suit was sent by registered post but it was returned by the post office as 'unclaimed' the petitioner thereafter tried to serve the summons through the bailiff of the court but on two days when he went with the bailiff to the premises he found the premises locked and the service, therefore, could not be effected. on the 27th august 1964 he obtained an order from the court for substituted service, which directed the substituted service to be effected by pasting the summons on the premises and sending a copy thereof by.....
Judgment:
ORDER

(1) On the 14th August 1964 the petitioner-landlord filed an ejectment suit against the respondent-tenant in the Court of Small Causes at Bombay on the ground that the respondent was a defaulter in the payment of rent for more than six months. the summons of the suit was sent by registered post but it was returned by the post office as 'unclaimed' The petitioner thereafter tried to serve the summons through the bailiff of the court but on two days when he went with the bailiff to the premises he found the premises locked and the service, therefore, could not be effected. On the 27th August 1964 he obtained an order from the court for substituted service, which directed the substituted service to be effected by pasting the summons on the premises and sending a copy thereof by registered post. Since the defendant did not appear even thereafter, an ex parte decree in favour of the plaintiff was passed on the 10th November 1964. The plaintiff executed the said ex parte decree and obtained possession of the property on the 16th December 1964 and within a day or two thereafter he let it out to another tenant. On the 19th December 1964 the respondent filed an application for setting aside the ex parte decree alleging that he was not property served with the summons of the suit and also had good and sufficient reasons to be absent on the day on which the suit was heard and the ex parte decree was passed. In the said application he also prayed for restoration of possession of which he was deprived in the execution of the ex parte decree. This application was rejected by the trial Court. The respondent thereafter preferred an appeal from the said order of the trial Court to the Appellate Bench of the Court of Small Causes. In the said appeal, the appellate Court was pleased to take the view that the substituted service obtained by the petitioner did not conform with the provisions of Order 5 Rule 20 of the Civil Procedure Code and was, therefore, not good and sufficient service. the appellate court also held that even otherwise the appellant had good and sufficient reason to be absent on the day of the hearing of the suit. It, therefore, set aside the order passed by the trial court refusing to ser aside the ex parte decree, granted the application of the respondent for the setting aside of the ex parte decree and remanded the case back to the trial court for hearing and disposal according to law. It also granted that prayer for the restoration of possession and directed that possession of the premises should be restored to the appellant within a week from its order. Against the said decision, the present Civil Revision Application has been preferred by the plaintiff-landlord.

(2) The learned advocate, who appears for the petitioner, has argued that in the first place the view taken by the appellate court that the service is not in conformity with the provisions of Order 5 Rule 20 is not correct. In the second place, the appellate Court had no power to consider whether the order for substituted service was made on sufficient grounds or not and thirdly, the appellate court was wrong in taking the view that the appellant had good and sufficient reason to be absent on the day of the hearing of the suit. Apart from these contentions, the learned advocate has also raised a point of jurisdiction, which goes to the root of the matter and that is, the appeal to the appellate court was not competent and consequently the order passed in the appeal is without jurisdiction and null and avoid.

(3) Now, the substituted service under Order 5 Rule 20 of the Civil Procedure Code is normally effected by affixing a copy of the summons in some conspicuous place in the Court house and also upon some conspicuous part of the house if any, in which the defendant is known to have last resided or carried on business or worked for gain. The provision of Order 5 Rule 20, however has provided that the court may order the substituted service to be effected in such other manner as it may think fit. In the present case, the order made by the court for substituted service required a copy of the summons to be pasted on the premises in which the defendant resided and another copy to be forwarded to him by registered post again. The view of the appellate court was that this was not in conformity with the provisions of Order 5, Rule 20, because under the said provision, the court should have directed that a copy of the summon also should be pasted in some conspicuous place in the court-house. which it has not done. It appears to me that the view taken by the appellate court is not correct. As I have already pointed out, the provision prescribes the normal method of effecting substituted service, but it does not make it obligatory on the court to prescribe the service only in the normal way. It has given power to the Court to order the substituted service in any other manner in which it may deem fit and proper. In the presentcase, the court directed that the substituted service may be effected in a some what different manner than in the normal way. If the court had power to do so, the order made by it could not be said to be either illegal or not in conformity with the provisions of law. There is, therefore, substance in the contention raised by the learned advocate for the petitioner that the view taken by the appellate court that the substituted service was not in conformity with the provisions of Order 5 Rule 20 of the Civil Procedure Code is not correct. He is also right, in my opinion, in his submission that if the requirements of the provisions of law were properly complied with by the trial court when it made the order for substituted service, the appellate court had no power to consider whether the order for substituted service was made on sufficient grounds or not, see Doraiswamy v. Balasundaram AIR 1927 Mad 507.

(4) In my opinion, therefore, if the decision of the appellate court were to rest merely on the grounds that the substituted service was not in proper compliance with the provisions of Order 5 Rule 20 or that it was not obtained on sufficient grounds. it would have been liable to be set aside. I however, find that the appellate court has further held that even otherwise the defendant had good and sufficient reason to be absent on the day of the hearing. It appears that the defendant was a person, who for a major part of the month stayed in Ahmedabad and only came occasionally to Bombay for a few days. the summons of the suit was sent to him by registered post in the first instance only on the 24th August 1964 and it was returned as 'unclaimed'. On the 26th and 27th of August 1964 service through the bailiff of the Court was sought to be effected. After having made these attempts to serve th defendant, between the 24th and 27th August 1964, substituted service was obtained by the plaintiff on the 27th August 1964. Having regard to the fact that the defendant was for the most part of the month staying at Ahmedabad, the fact that he could not be served with summons through the bailiff or by registered post on the dates as aforesaid, did not necessarily indicate that he was avoiding service or keeping himself out of Bombay. The summons was pasted on his premises on 3rd September 1964 but even thereafter on the 27th September 1964 the defendant appears to have paid a part of the rent in arrears due from him to the landlord's rent collector. This circumstance again would indicate that he was unaware of the suit filed against him. It cannot, therefore, be said that the appellate Court had no material before it from which it could conclude that the defendant had remained absent on the date of the hearing of the suit because he was unaware of it and his absence, therefore, could be said to be for good and sufficient reason. I cannot, therefore, interfere with the said conclusion of the appellate court in the present civil revision application. Since the order passed by the appellate court could be sustained on the said ground even if it were possible to find fault with the other reasons given by it for its order, I do not think it is possible to set aside the decision of the appellate court on merits.

(5) Coming now to the next point viz, that the appeal to the appellate court was not competent, the argument of the learned advocate is as follows: The provisions of S. 104 and O 43 Rule 1 of the Code of Civil procedure are not applicable to the Bombay Small Causes Court. consequently no appeal would lie from an order passed by the Bombay Small Causes Court on an application made to it under Order 9 rule 13 of the Civil Procedure Code for setting aside an ex parte decree. If the order in the present case is treated as an order made by the Bombay Small Causes Court it is clearly non-appealable. Even if it is regarded as made by the Special Court under the Rent Act and not by the Bombay Small Causes Court it will still be non-appealable because it is not made by the Special Court in the exercise of its jurisdiction under S. 28 of the Rent Act. The jurisdiction of a Special Court under Section 28 of the Rent Act is to entertain and try a suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of certain classes of premises specified in the said section and to decide applications under the Rent Act. It does not extend to entertain, try or decide an application or proceeding to set aside an ex parte decree passed by it under the Rent Act. consequently an order made on an application to set aside an ex parte decree made under the Rent Act cannot be treated as made by it exercising jurisdiction under Section 28 of the Rent Act so as to make an appeal therefrom competent under the provisions of Section 29 of the Act.

(6) Under Section 8 of the Civil Procedure Code, excepting the sections specifically mentioned therein, the provisions in the body of the Code do not extend to the Court of Small Causes in the Presidency towns of Calcutta, Madras and Bombay. The section , however, has empowered the High Court to extend the provisions of the Code not inconsistent with the express provisions of the Presidency Small Causes Court Act. to the Presidency Small Causes Court. Acting under the said powers the Bombay High Court has extended certain provisions of the Code with some modifications to the Bombay Small Causes Court. These provisions, however, do not contain Section 104 or Order 43, Rule, 1, though they contain O. 9 with some modifications. Order 9, Rule 13, therefore, is applicable to the Bombay Small Causes Courts Order 43, however, is not, with the result that although an application under Order 9 rule 13 could be made to the Bombay Small Causes Court for setting aside an ex parte decree, no appeal therefrom to the appellate bench would be competent under Small Causes Courts Act. If the application made by the defendant in the present cas for setting aside the ex parte decree passed against him could be regarded as an application made by him to the Bombay Small Causes Court exercising jurisdiction under the Presidency Small Causes Courts Act, the learned Advocate for the petitioner would undoubtedly be right in his contention that no appeal from that order lay to the appellate bench of the Small Causes Court. In my opinion, however, it is impossible to look upon the order as made by the Bombay Small Causes Court in the exercise of its jurisdiction under the Presidency Small Causes Courts Act. The ex parte decree, though passed by the Bombay Small Causes Court, was not passed by it exercising jurisdiction under the Presidency Small Causes Courts Act, but as a special court under the Rent Act. An application to set aside an ex parte decree can be made only to the court which has passed it and to no other court. The Special Court under the Rent Act having passed the ex parte decree the application to set aside the decree can be made only to that Court. Although the Bombay Small Causes Court is invested with the jurisdiction to act as the Special Court under Section 28 of the Rent Act when it acts in that capacity it is a different court from the Small Causes Court under the Presidency Small Causes Courts Act. Consequently it will have no jurisdiction to entertain, try or decide an application o set aside the ex parte decree made by it as a Special Court under the Rent Act. Since the order made cannot be treated as made by the Bombay Small Causes Court in exercise of its jurisdiction un-under the Presidency Small Causes Courts Act , the challenge to the applicability of the order on the ground that it is an order of the Bombay Small Causes Court, cannot survive. The further argument of the learned advocate, however, is that even if it is regarded as an order made by the Special Court, it is still non-appealable because it is not made by it exercising jurisdiction under Section 28 of the Bombay Rent Act. In order to appreciate the said argument. it would be necessary to consider the relevant provisions of the Bombay Rent Act.

(7) It is clear from the provisions of the Bombay Rent Act that the said Act has established Special Courts investing them with exclusive jurisdiction to try certain suits under the Rent Act. The Act has not only set up the Special Courts for the hearing of such suits but it has also provided for the hearing and disposal of appeals and revisions arising from such suits and the Special Courts by which such appeals and revisions are to be heard and disposed of. It has also further provided for the procedure to be followed by the Special Courts which it has invested with jurisdiction to hear and dispose of certain matters under the Rent Act. Section 28 of the Bombay Rent Act specifies the Special Courts which will have jurisdiction to try certain suits and proceedings under the Rent Act. The Special Court for Greater Bombay is the Court of Small Causes at Bombay and the jurisdiction which it has has been invested under the said section is to entertain and try any suit or proceeding between a landlord and tenant relating to recovery of rent and possession of any premises to which any of the provisions of Part II of the Rent Act apply and to decide any application made under the Act and to deal with any claim or question arising out of the Act or any of its provisions. Section 29 provides that notwithstanding anything contained in any law, an appeal shall lie from a decree or order made by the Court of Small Causes exercising jurisdiction under Section 28 to a bench of two Judges of the said Court which shall not include the Judge who has made such decree or order. The provision to this section specifies certain matters in which no appeal would lie and amongst them are decrees or orders made in a suit or proceeding in respect of which no appeal lies under the Code of Civil Procedure Code, 1908. Section 31 provides that the courts specified in Secs. 28 and 29 shall follow the prescribed procedure in trying and hearing suits, proceedings, applications and appeals and in executing orders made by them. The prescribed procedure is the procedure prescribed under the rules made by the State Government, which it has been given power to make under Section 49 of the Act. The State Government accordingly has made the said rules, which are called 'The Bombay Rents, Hotel and Lodging House Rates (Control) Rules, 1948.' It is on an examination of these provisions that the question as to whether an appeal from the order passed by the trial Court under Order 9 Rule 13 of the Civil Procedure Code lay to the appellate bench of the Small Causes Court has got to be considered.

(8) The suit filed by the plaintiff against the defendant in the present case was undoubtedly a suit falling under Section 28 of the Bombay Rent Act relating to the recovery of rent and possession of the suit premises, to which the provisions of Part II of Rent Act apply. The Bombay Small Causes Court in entertaining the said suit was exercising the jurisdiction vested in it as a Special Court under Section 28 of the Bombay Rent Act. In exercising the said jurisdiction the Procedure, which it had to follow, was the procedure as indicated by Section 31, i.e. the procedure in accordance with the rules framed by the State Government under S. 49 of the Act., Now, a perusal of the said rules would show that if the suit fell under rule 5 (2) the procedure to follow was the procedure prescribed under the rules framed under Section 9 of the Presidency Small Causes Courts Act. and if suit fell under R. 8, the procedure prescribed by the Civil Procedure Code. As I have already pointed out, under S. 8 of the Civil Procedure Code, the High Courts were empowered to extend the provisions of the Code to the Presidency Small Causes Courts and Section 9 of the Presidency Small Causes Courts Act also provided that the High Court may from time to time prescribe th procedure to be followed and the practice to be observed by the Small Causes Court. Acting under these powers the High Court has made rules, which ware called the Presidency Small Cause Courts Rules and these rules have provided for the application of certain provisions of the Civil Procedure Code with certain modifications of the Small Causes Court and under the said rules O. 9 is made applicable to the Presidency Small Causes Court. Both in suits falling under the purview of rules 5 and 8, therefore, the Special Court exercising jurisdiction under Section 28 of the Bombay Rent Act will be entitled to follow the procedure prescribed under Order 9 rule 13 to entertain an application for the setting aside of the ex parte decree passed by it as a result of the consequence of the default of appearance of the parties to the suit. In the present case, therefore, the application made by the defendant for setting aside the ex parte decree, which had come to be passed asa consequence of his default of appearance on the date of the hearing of the suit was an application, which the Special Court trying the suit was competent to entertain as such court.

(9) It is argued by the learned advocate for the petitioner that the jurisdiction of the Special Court under Section 28 was to entertain a suit relating to recovery of rent or possession or to decide any question relating to the recovery of rent or possession. Its jurisdiction as a Special court under the Rent Act is confined only to dealing with questions relating to the recovery of rent or possession of the suit premises and that jurisdiction came to an end as soon as the ex parte decree for eviction was passed in the said suit in the exercise of the said jurisdiction. The application, which was made under Order 9 rule 13 of the Civil Procedure Code had not for its subject matter any question relating to the recovery of rent or possession of the premises; the subject-matter of the said application was whether the decree should be set aside or not. In entertaining the said application and deciding it the Special Court did not exercise jurisdiction under Section 28 of the Rent Act. Orders of the Special Court, which are made appealable under Section 29 of the Act are orders, which are made by such court exercising jurisdiction under Sec. 28 of the Rent Act and since in making the order on the application to set aside the ex parte decree, the Special Court was not exercising jurisdiction under Section 28 of the Act, the order is not appealable. I am unable to appreciated the argument. Under Section 29 of the Rent Act, appeal is provided from a decree or order made by the Bombay Small Causes Court exercising jurisdiction under S. 28 subject to the exceptions contained in the proviso to the said section. The Bombay Small Causes Court exercising jurisdiction under Section 28 is a Special Court set up by the said section and appealability attaches to its decree or order under Sec. 29 when it makes a decree or order as such court. No doubt the jurisdiction of the Special Court set up under Section 28 is confined to matters specified therein, which include, among others, the entertaining and trying of suits or proceedings between a landlord and a tenant relating to the recovery of rent or possession of certain classes of premises. But once the Special Court entertains and trie s a suit or proceeding which falls within its exclusive jurisdictionj, all orders made by it in the said suit or proceeding or in relation thereto, are made by it as Special Court, that is,. a court exercising jurisdiction under Section 28 and not only such of them as actually relate to the recovery of rent or possession. Appeal provided under Section 29 of the Act is not confined only to the final decree or order or to an order, which relates to recovery of rent or possession but it lies against all orders expert those which are excluded under the proviso to the section. Item (1) from the proviso read with the main section would show that interlocutory and other orders which the Special Court can pass in entertaining, trying and deciding matters within its exclusive jurisdiction which are appealable under the provisions of the Code of Civil Procedure will be appealable under Section 29 of the Rent Act. The argument of the learned advocate, therefore, that the order is not appealable because it does not relate to the recovery of rent or possession, cannot be sustained. It is also not possible to accept the argument that the jurisdiction under Section 28 of the Court ceased on the passing of the ex parte decree and the order made by it on the application for setting aside the ex parte decree could not, therefore, be treated as made by it exercising jurisdiction under Section 28 of the Act.

(10) It will be seen that Order 9 of the Civil Procedure Code deals with a matter relating to the hearing and disposal of the suit, viz the appearance of parties and the consequence of non-appearance. The provisions of this order relate to what is required to be done by the parties to the suit in relation to the hearing and disposal of the suit and what the court can do or has to do in that connection. Rule 6 contained in this Order provides that if the defendant fails to appear and the plaintiff appears when the suit is called for hearing and it is proved that the summons was duly served. the Court may proceed ex parte against the defendant and pass an ex parte decree against him. This is a consequence of the default of appearance on the part of the defendant. Order 9 rule 13 then provides that the defendant against whom an ex parte decree has been passed as a consequence of his default of appearance may get over the said consequence by applying to the Court for setting aside the ex parte decree and for the restoration of the suit. If the application of the defendant for setting aside the ex parte decree is granted and the suit is restored, it continues to be heard and proceeded with further until it eventually terminates into a decree in favour of one part or the other. The passing of the ex parte decree does not make the court trying the suit functus officio with regard to the same. Tha passing of the ex parte decree is merely a consequence of the non-appearance of the party and on proper procedure being adopted before the same Court, the consequence is avoided and the further hearing of the suit goes on. The application to set aside an ex parte decree is entertained by the same court which has passed the decree and if the court, which passes the ex parte decree, is the court exercising jurisdiction under Section 28 of the Rent Act. the application to set aside the ex parte decree is also heard by the same court and the order made thereon is also by the same court, i.e. by a court exercising jurisdiction under Section 28. It is, therefore, difficult to accept the contention that the court exercised jurisdiction under Section 28 only till the stage of the passing of the ex parte decree and did not exercise that jurisdiction when it subsequently entertained and decided the application, which was made to it under Order 9 rule 13 of the Civil Procedure Code. In my opinion, the entertainment of the application for the setting aside of the ex parte decree and the order made thereon by the trial Court was in its character as a Court exercising jurisdiction under Section 28 of the Act. Under Section 29 of the Rent Act an appeal lies from a decree or order made by the Small Causes Court at Bomaby exercising jurisdiction under Section 28 to the appellate bench of the Small Causes Court, subject to the exception specified in the proviso. The words 'exercising jurisdiction under Section 28' qualify the words 'Small Causes Court at Bombay' which precede them and what the provision means, in my opinion, is that an appeal lies from the decree or order of the Small Causes Court at Bombay when it acts as a special court under Section 28 of the Act, subject of course to the exceptions specified in the proviso. The only part of the provico, which is relevant, as already stated above, is item No.1, which provides that a decree or order made in any suit or proceeding in respect of which no appeal lies under the Code of Civil Procedure will not be appealable under Section 29 also. It would, therefore, follow that if the decree or order made by the Special Court exercising jurisdiction under section 28 is such as is appealable under the Code of Civil Procedure, an appeal from such decree or order will lie to the appellate bench of the Bombay Small Causes Court. Now, under the Civil Procedure Code, an order, made under Order 9 Rule 13 refusing to set aside an ex parte decree is appealable under Order 43. If such an order , therefore, is made by the Special court exercising jurisdiction under Section 28 of the Bombay Rent Act as a Special Court an appeal will lie to an appellate bench of the Small Causes Court under S. 29 The argument of the learned advocate for the petitioner was that the order was not made by the Small Causes Court while it was exercising jurisdiction under Section 28 of the Rent Act but that argument, for the reasons, which I have already pointed out, I am unable to accept. The suit was a suit under the Rent Act entertained by the Bombay Small Causes Court as a Special Court under the Rent Act. In proceeding with the said suit an ex parte decree was passed by it as provided under Order 9 and on an application as provided under the said Order, it had refused to set aside the ex parte decree. The jurisdiction, which the court was exercising while considering the provision of Order 9 R. 13, was the jurisdiction which it had exercised when it was trying the suit and the application was made to it in its exercise of the said jurisdiction only. In my opinion, therefore, the contention urged by the learned advocate that no appeal lay to the appellate bench under Section 29 of the Bombay Rent Act from the trial court's order refusing to set aside the ex parte decree cannot be entertained.

(11) The learned advocate for the petitioner has invited my attention to a decision of the Gujarat High Court reported in (1966) 7 Guj LR 401.. Trust v. R. J. Agarwal which supports the contention urged by him,. The view taken in that case is that the Small Causes Court does not exercise jurisdiction under Section 28 of the Rent Act when it passes an order under Order 9 rule 13 of the Code of Civil Procedure, either setting aside or refusing to set aside a decree passed by it in a suit under the Rent Act. The view taken in that case is that the jurisdiction under Section 28 of the Rent Act ceases as soon as the ex parte decree is passed and if thereafter an application to set aside the ex parte decree is heard by the said Court, it does not exercise the jurisdiction under Section 28 of the Rent Act in dealing with the said application and the order passed on the said application, therefore, cannot be said to be one passed by it while exercising jurisdiction under Section 28. With very great respect to the learned Judge. I am unable to agree with the view that he has taken, for the reasons which I have already discussed.

(12) the appellate court has also granted the respondent the relief of restoration of possession, which he had prayed for and has directed that he should be restored to possession within a week of its order. The execution of the said order has been stayed pending the hearing of this revision application. The learned advocate for the petitioner has urged and (sic) in the circumstances of the case, the order of immediate restitution of possession of the respondent, at any rate, was not justified and should not have been passed under Section 151 of theC. P. C. He has pointed out that after having obtained possession in execution of the ex parte decree on the 18th December 1964, another tenant has been let into possession of the premises. The respondent has been ousted on the ground that he is a defaulter and the plaintiff's case is that he has not paid rent since October 1963. The plaintiff has also alleged that the respondent has not been in occupation of the premises for over a long period and even on the defendant's own showing , he has been staying at Ahmedabad for most part of the year and coming only occasionally to Bombay. The learned advocate, has therefore, urged that in these circumstances immediate restoration to possession of the respondent should not have been ordered by the appellate court. Normally, where possession has been obtained in pursuance of an order of the Court, which is subsequently reversed, the person, who is deprived of the possession on the basis of the order, is entitled to have the status quo before the passing of the order of restoration. In the present case, however, I do not think that it is necessary to permit the respondent to have immediate possession of the premises. The setting aside of the ex parte decree passed against him gives him a chance to fight out the suit on merits, but the fact that he has been given a chance to fight does not mean that he will necessarily succeed in the said fight and it may as well be that the plaintiff will be entitled to have a decree for eviction passed in his favour at the conclusion of the suit. There is already a new tenant, who has got into possession of the premises and if the restoration of possession of the respondent is only short-lived until he fails in the suit on merits it does not appear necessary to disturb the new tenant's possession and restore the possession of the property to the respondent. The question as to whether the respondent is entitled to retain his possession of the property or must submit to an ejectment will be decided in the suit. If until that stage the enforcement of the order of restitution of possession made in favour of the respondent is stayed, that in my opinion would not cause such inconvenience to the new tenant. Since the respondent's prayer for restoration has been considered by the lower Court under Section 151 of the Civil Procedure Code, such a direction if given would not be impermissible. Although, therefore, the order passed by the appellate court granting restitution of possession is correct and need not be set aside it is desirable to postpone the enforcement of the said order for some time.

(13) In the result, therefore, the order passed by the appellate court is confirmed both as regards the setting aside of the ex parte decree and holding the respondent entitled to restitution subject to the modification that the order of restitution will be stayed and not capable of being enforced by the respondent until the decision of the restored suit by the trial Court. I also direct the trial court to hear and dispose of the suit as expeditiously as possible and within a period of three months at the latest. The rule is accordingly discharged subject to the modification in the order passed by the lower court as already stated. The petitioner will pay the costs of the respondent.

(14) The defendant will file his written statement in the suit within a fortnight from this day and the trial court will thereafter proceed on with the hearing and disposal of the suit.

(15) Petition dismissed.


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